CAG-11-004

INTERLOCAL AGREEMENT BETWEEN THE CENTRAL PUGET SOUND REGIONAL TRANSIT AUTHORITY AND THE CITY OF RENTON REGARDING WETLAND PERMITS AND MITIGATION FOR THE TUKWILA LONGACRES STATION PROJECT

THIS Agreement is made this Qe? tfz-~ day of (CT**- ^^^~j 2M-0 between the Central Puget Sound Regional Transit Authority (hereinafter referred to as "SOUND TRANSIT" or "ST") and the City of Renton, a municipal corporation ("Renton" or "City").

RECITALS

WHEREAS, Sound Transit plans to construct a new permanent Tukwila Commuter Rail Station along the Burlington Northern Santa Fe Railway (BNSF) tracks ("Tukwila Longacres Station") to improve access for passengers on Sound Transit's Sounder Commuter Rail Service between Tacoma and Everett; and

WHEREAS, it is anticipated that Sound Transit and the City will negotiate and execute a separate agreement in which Sound Transit will commit funding for the Strander Project and work with the City to provide access from the Tukwila Longacres Station to Strander Blvd.; and

WHEREAS, as part of implementing the Tukwila Longacres Station project, Sound Transit must permit and mitigate certain wetland and wetland buffer impacts; and

WHEREAS, the City has previously obtained US Army Corps of Engineers and Department of Ecology permits, plans to obtain a City of Tukwila permit, and has purchased mitigation bank credits for wetland and buffer impacts for the City's Strander Blvd. Project, which is in the same area as the Tukwila Longacres Station project; and

WHEREAS, the City's permits for the Strander Blvd. Project may expire if the City does not begin work under those permits; and

WHEREAS, the City is willing to allow Sound Transit to construct permitted wetland fill on the City's behalf in order to extend the life of those permits and to save Sound Transit the time and money required to obtain separate permits and construct a separate mitigation project.

NOW THEREFORE, the parties enter into this Agreement as provided herein.

1. PURPOSE

The purpose of this Agreement is to describe the conditions under which the City will modify and obtain wetland permits for the Strander Blvd. Project and Sound Transit's Tukwila Longacres Station Project, provide mitigation credits from the Springbrook Mitigation Bank necessary to offset the wetland and buffer impacts of the Tukwila Longacres Station Project, and the terms and conditions under which Sound Transit will reimburse the City for satisfactory performance of these commitments.

2. COOPERATION AND GOOD FAITH EFFORTS

2.1 Both parties acknowledge that the success of the regional transportation program requires their willingness to work collaboratively to achieve the goals and objectives articulated in this Agreement. The Parties understand and agree that the process described in this Agreement depends upon timely and open communication and cooperation between the Parties. In this regard, communication of issues, changes, or problems that arise with regard to any aspect of the work should occur as early as possible in the process, and not wait for explicit due dates or deadlines. Each party agrees to work cooperatively and in good faith toward resolution of any such issues. 3. GENERAL FUNDING APPROACH

3.1 Permitting Costs. Sound Transit shall provide the City reimbursement for the actual costs associated with modifying or obtaining wetland permits to cover wetland and buffer impacts from the Tukwila Longacres Station Project in one lump sum payment for a total amount of up to but not to exceed a maximum amount of Twenty Thousand dollars ($20,000.00). The City shall provide Sound Transit with an invoice documenting its actual costs for modifying existing Strander Blvd., permits and obtaining new wetland permits, as provided in this Agreement. Sound Transit agrees to pay the invoice within thirty (30) days of receipt of a properly supported invoice as provided in Section 5.3.

3..2 Mitigation Bank Credits. Sound Transit shall provide the City with reimbursement for allocation of the number of mitigation credits from the Springbrook Mitigation Bank necessary to cover impacts to wetlands and buffers from the Tukwila Longacres Station project according to the ratios and cost per credit described in the Springbrook Mitigation Banking Instrument, in one lump sum payment for a total amount of up to but not to exceed a maximum amount of One Hundred Twenty Thousand dollars ($120,000.00). As described in the Springbrook Mitigation Banking Instrument, the Bank credits were developed to compensate at a 0.85:1 ratio for impacts to Category III wetlands. The total cost per credit at the Springbrook Bank is $63 6,000 J)0.

The City shall provide Sound Transit with written documentation or certification of the mitigation bank ledger showing that mitigation credits have been released from the Springbrook Mitigation Bank to mitigate the impacts to Category III wetlands from the Tukwila Longacres Station project. Sound Transit agrees to pay the lump sum amount referenced in this Section within thirty (30) days of receipt of the documentation described herein.

3.3 Funding Principles. The Parties agree that the following principles apply to this Agreement and any subsequent funding agreement executed by the parties: (1) Sound Transit shall not be obligated to reimburse the City if the City is unable to fulfill its obligations for modifying existing permits and obtaining new permits to cover the Tukwila Longacres Station Project as described under this Agreement; and (2) Sound Transit shall not be obligated to reimburse the City for permitting costs that the City would otherwise have incurred for the permitting of the Strander Blvd. Project.

3.4 Relation to City's Strander Blvd. Project. Both parties understand and agree that the allocation of Springbrook Mitigation Bank credits to the Tukwila Longacres Station Project is directly related to construction of the BNSF bridge portion of the City's Strander Blvd. Project. If the BNSF bridge portion of the Strander Blvd. Project is not completed as currently contemplated, the Parties acknowledge that further coordination with the Army Corps of Engineers would be necessary to determine if the permitting and mitigation contemplated under this Agreement remains feasible.

4. SCOPE AND SCHEDULE

4.1 Renton Wetland Permitting Responsibilities. The City shall obtain modifications to the existing Strander Blvd. permits and obtain a new permit from the City of Tukwila to accommodate the wetland and buffer impacts identified by Sound Transit for the Tukwila Longacres Station project. The specific permits and/or approvals to be modified or obtained include the following: 1. Modification to Corps section 404 permit (#NWS-2007-35) 2. Modification to Ecology section 401 permit (#6224) 3. Sensitive Areas Special Permission from the City of Tukwila for wetland and/or buffer impacts

The City will also pursue a Jurisdictional Determination from the City of Tukwila for all wetlands on the Tukwila Station site. These include wetlands N, O, P, and S as described in the Wetland Technical Discipline Report completed in 2004 for the Strander Boulevard Extension Project and in the Tukwila Commuter Rail Station NEPA Environmental Assessment completed in January 2009.

The City shall be responsible for obtaining any and all agency approvals necessary to allocate Springbrook Mitigation Bank Credits for the Tukwila Longacres Station project impacts.

4.2 Sound Transit Wetland Permitting Responsibilities: Sound Transit will provide CAD files showing the final wetland and buffer impacts that will result from construction of the Tukwila Station project to support the City's permitting effort.

Sound Transit will be responsible for compliance with the applicable terms and conditions related to the Tukwila Longacres Station project impacts in the modified Corps and Ecology permits and the new Tukwila Sensitive Areas Special Permission permit.

4.3 Schedule for Completion of Wetland Permitting. The City shall complete all applications for permit modifications and new permits for review by Sound Transit within thirty (30) days of the execution of this Agreement. Sound Transit shall review all permit applications and provide comments to the City within fourteen (14) days of receipt. The City shall then make changes to the applications as needed and submit the applications to the appropriate permitting agencies within twenty-one (21) days of receiving comments from Sound Transit.

5. GENERAL TERMS

The following general terms are applicable to this Agreement.

5.1 Indemnification. To the extent permitted by law, the Parties to this Agreement shall protect, defend, indemnify, and save harmless the other Party, and its officers, officials, employees, and agents, while acting within the scope of their employment, from any and all costs, claims, demands, judgments, damages, or liability of any kind including injuries to persons or damages to property, which arise out of, or in any way result from, or are connected to, or are due to any acts or omissions of the indemnifying Party. No Party shall be required to indemnify, defend, or save harmless the other Party if the claim, suit, or action for injuries, death, or damages is caused by the sole negligence of the Party seeking indemnification. Where such claims, suits, or actions result from concurrent negligence of the Parties, the indemnity provisions provided herein shall be valid and enforceable only to the extent of the Party's own negligence. Each Party agrees that its obligations under this indemnification section extend to any claim, demand, and/or cause of action brought by, or on behalf of, any of its employees or agents. For this purpose, each Party, by mutual negotiation, hereby waives, with respect to the other Party only, any immunity that would otherwise be available against such claims under the industrial insurance provisions of Title 51 RCW. In the event of any claims, demands, actions and lawsuits, the indemnifying Party upon prompt notice from the other Party shall assume all costs of defense thereof, including legal fees incurred by the other parties, and of all resulting judgments that may be obtained against the other Party. This indemnification shall survive the termination of this Agreement.

5.2 Payment of Contributions. Sound Transit's funding contributions shall be made upon the satisfactory completion of actual work performed as completed and described under this Agreement. Sound Transit shall not transfer nor be obligated to transfer any funds in advance of the completion of the actual work described in this Agreement.

5.3 Invoices. All invoices, required reports, and supporting documentation of the actual costs associated with the modifying or obtaining permits as provided in this Agreement shall be submitted to: Sound Transit, Accounts Payable, 401 South Jackson, Seattle, Washington 98104-2826. Invoices shall bear the name and address of the party's Designated Representative, and reference this Agreement. Invoices shall be properly completed and accompanied with the certification of completeness and other documentation as required by Sound Transit.

Sound Transit reserves the right to withhold payments pending timely delivery and proper completion of the reports or documents as may be required under this Agreement. 5.4 Reports and Documentation. Sound Transit may require other financial documents to verify that the expenditures are related to the Project work funded by this Agreement, including, but not limited to, (1) work statements or payroll records, (2) invoices for materials and supplies, (3) statements from professionals for services rendered, (4) certification by the City of materials and services satisfactorily rendered, and (5) an itemized listing of the charges supported by copies of original bills, invoices, expense accounts, and miscellaneous supporting data retained by the City. The City shall provide any plans, specifications, accounting records or other documents needed to satisfy requests from federal funding agencies for information to comply with Sound Transit's funding requirements.

5.5 Availability of Records. All Project records in support of all costs incurred and actual expenditures kept by the City and its contractor shall be open to inspection by Sound Transit or its federal funding agency during normal business hours, and shall be retained and made available for such inspection for a period of not less than six (6) years from final payment of funds under this Agreement to the City. Copies of said records shall be furnished to Sound Transit and/or its federal funding agency upon request. This requirement shall be included in all subcontracts related to the work entered into by the City to fulfill the terms of this Agreement.

5.6 Audit. If an audit is requested by Sound Transit or its federal funding agency, the City shall cooperate fully with the auditor chosen by Sound Transit or the federal funding agency. If an audit is required, the City will provide documentation of all costs incurred on the Project. In the event that Sound Transit has paid in excess of its final funding commitment under this Agreement, the excess amount will be repaid to Sound Transit within thirty (30) days of the conclusion of the audit.

5.7 Contract Administration. To fulfill its respective responsibilities under this Agreement, each Party shall be solely responsible for the administration of and the completion and quality of work performed under any contracts executed by the Party. In no event shall any contract executed by a Party be construed as obligating the other Party or Parties to this Agreement. Any claims arising out of the separate contracts of each Party for work under this Agreement are the sole responsibility of the Party executing and administering such separate contracts. All contracts shall comply with all applicable public works and procurement laws and regulations, including, but not limited to, applicable bonding, prevailing wage, nondiscrimination, retainage, insurance, and workers compensation requirements.

5.8 Dispute Resolution. The Parties will work collaboratively in accordance with the following steps to resolve disagreements arising from activities performed under this Agreement. Disagreements will be resolved promptly and at the lowest level of authority. The Designated Representatives shall use their best efforts to resolve disputes and issues arising out of or related to this Agreement. Each Designated Representative shall notify the other in writing of any problem or dispute the Designated Representative believes needs formal resolution. This written notice shall include: (1) a description of the issue to be resolved; (2) a description of the difference between the Parties on the issue; and (3) a summary of steps taken by Designated Representative to resolve the issue. In the event the Designated Representatives cannot resolve the dispute within fourteen (14) days of receipt of the notice, the Sound Transit Chief Executive Officer or his/her designee and the Mayor of Renton or her/his designee shall engage in good faith negotiations to resolve the dispute.

The Parties agree that they shall have no right to seek relief under this Agreement in a court of law until and unless each of these procedural steps is exhausted. If any applicable statute of limitations will or may run during the time that may be required to exhaust the procedural steps set forth above, the Parties agree to seek an order to suspend any proceeding filed in a court of law while the procedural steps set forth above are satisfied.

6. TERMINATION FOR DEFAULT

6.1 Either Party may terminate this Agreement, in whole or in part, in writing, if the other Party substantially fails to fulfill any or all of its obligations under this Agreement through no fault of the other party, provided that insofar as practicable, the Party terminating the Agreement will provide: (1) Written notice of intent to terminate at least thirty (30) days prior to the date of termination stating the manner in which the other Party has failed to perform the obligations under this Agreement; and (2) An opportunity for the other Party to cure the default within at least thirty (30) days of notice of the intent to terminate. In such case, the Notice of Termination will state the time period in which cure is permitted and any other appropriate conditions.

6.2 If the other party fails to remedy the default or the breach to the satisfaction of the other Party within the time period established in the Notice of Termination or any extension thereof, granted by the Party not at fault, this Agreement shall be deemed terminated. 7. GENERAL LEGAL PROVISIONS

7.1 Governing Law and Venue. This Agreement shall be governed by the laws of the State of Washington. Any action arising out of this Agreement shall be brought in King County Superior Court.

7.2 No Employment Relationship Created. The Parties agree that nothing in this Agreement shall be construed to create an employment relationship between the City and any employee, agent, representative or contractor of Sound Transit.

7.3 No Agency. No separate entity is created by this Agreement. No joint venture or partnership is formed as a result of this Agreement. No employees, agents or subcontractors of one party shall be deemed, or represent themselves to be, employees of the other party.

7.4 No Third Party Rights. It is understood and agreed that this Agreement is solely for the benefit of the Parties hereto and gives no right to any other party. Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the Parties. 7.5 Severability. If any of the terms and conditions of this Agreement are determined to be invalid or unenforceable by a court of competent jurisdiction, the remaining terms and conditions unaffected thereby shall remain in full force and effect.

7.6 Designated Representatives. The Designated Representatives for the City of Renton shall be the City's Planning/Building/Public Works Administrator. The Sound Transit Designated Representative shall be the Sound Transit Projects and Construction Management Deputy Director. The parties may unilaterally change their Designated Representatives by sending written notice to the other party as provided in Section 7.7.

7.7 Notices. All notices to be provided under this Agreement shall be in writing and shall be hand-delivered or sent by US Mail, and shall be deemed received upon delivery or, in the case of notice sent by mail, five (5) days after deposit in the US Mail.

Notices to the City shall be sent to the following address:

City of Renton c/o Transportation Systems Division 5th Floor - Renton City Halll055 South Grady Way Renton, WA 98057

Notices to Sound Transit shall be sent to the following address:

Sound Transit c/o Department of Design Engineering and Construction Management 401S. Jackson Seattle, WA 98104

7.8 Calculation of Time. Time is of the essence in every provision of this Agreement. Unless otherwise set forth in this Agreement, the reference to "days" shall mean calendar days. If any time for action occurs on a weekend or legal holiday, then the time period shall be extended automatically to the next business day.

7.9 Entire Agreement. This Agreement, including its Recitals and Exhibits, embodies the Parties entire Agreement on the matters covered by it, except as supplemented by subsequent amendments to this Agreement. All prior negotiations and draft written agreements are merged into and superseded by this Agreement.

7.10 Execution of Agreement. This Agreement may be executed in two (2) counterparts, any one of which shall be regarded for all purposes as one original.

IN WITNESS WHEREOF, the Parties hereto hereby agree to the terms and conditions of this Agreement as of the date first written above. For the City of Renton: For Sound Transit:

xmm/ i \epp- By: Denis Law II/0LUII By:—loan MJ Earl Title: Mayor Title: Chief Executive Officer

ApproA^Pks to Form: Approved as to Form:

By: Lawrence J. Warren Byf""' Stephen G. "Slieehy Title: Renton Legal Counsel Title: Sound Transit Legal Cfiunsel

Attest:

By: Bonnie I. Walton Title: Renton City Clerk